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In This Volume

  • 25 If the benefit of a restrictive covenant about building on or the use of land is annexed or purports to be annexed by an instrument to other land, the benefit, unless expressly agreed otherwise, is deemed to be annexed to the whole and to each and every part of that other land capable of benefiting from the restrictive covenant.

1979-340-21.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Registration of Restrictive Covenants and Easements

See s. 182 of the Land Title Act in this Manual.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, para. 337.

CASE LAW

Covenant Not Annexed by Instrument to Other Land

A covenant that restricts the use of land to parking for “adjoining commercial properties” does not confer the right to use that land for parking. If a restrictive covenant is registered against one parcel of land and it is not annexed by an instrument to other land, owners of the other land cannot claim the benefit of the covenant. Section 25 of the Property Law Act applies only if the covenant is annexed “by an instrument to other land” (Babine Investments Ltd. v. Prince George Shopping Centre Ltd., 2002 BCCA 289, affirming, but reversing in part on other grounds 2000 BCSC 1207; see also the annotation for this decision under s. 20 of the Land Title Act and s. 3 of the Land Transfer Form Act).

Extension of Benefit of Building Scheme

Section 25 does not operate such that a common law or a statutory building scheme can be enlarged by a developer who has sold all of the property in that scheme by the simple device of including the restrictive covenants in the first deed from whatever additional property the developer may own or subsequently acquire. The burden on the owners of land in the original building scheme cannot be increased without their consent. If the legislature intends to derogate from the rights of a property owner, in effect expropriating an interest in land without compensation, it must do so clearly (Munro v. Jaehrlich, 1994 CanLII 2727 (BC SC); see also the annotation for this decision under s. 220 of the Land Title Act in this Manual).